SUPREME COURT OF THE UNITED STATES · 2 GARCETTI v. CEBALLOS Syllabus ployee has no First Amendment...

1 (Slip Opinion) OCTOBER TERM, 2005

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

GARCETTI ET AL. v. CEBALLOS

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 04–473. Argued October 12, 2005—Reargued March 21, 2006—Decided May 30, 2006

Respondent Ceballos, a supervising deputy district attorney, was asked by defense counsel to review a case in which, counsel claimed, the af-fidavit police used to obtain a critical search warrant was inaccurate. Concluding after the review that the affidavit made serious misrep-resentations, Ceballos relayed his findings to his supervisors, petition-ers here, and followed up with a disposition memorandum recommend-ing dismissal. Petitioners nevertheless proceeded with the prosecution. At a hearing on a defense motion to challenge the war-rant, Ceballos recounted his observations about the affidavit, but the trial court rejected the challenge. Claiming that petitioners then re-taliated against him for his memo in violation of the First and Four-teenth Amendments, Ceballos filed a 42 U. S. C. §1983 suit. The Dis-trict Court granted petitioners summary judgment, ruling, inter alia, that the memo was not protected speech because Ceballos wrote itpursuant to his employment duties. Reversing, the Ninth Circuit held that the memo’s allegations were protected under the First Amendment analysis in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, and Connick v. Myers, 461 U. S. 138.

Held: When public employees make statements pursuant to their offi-cial duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communica-tions from employer discipline. Pp. 5–14.

(a) Two inquiries guide interpretation of the constitutional protec-tions accorded public employee speech. The first requires determin-ing whether the employee spoke as a citizen on a matter of public concern. See Pickering, supra, at 568. If the answer is no, the em-

2 GARCETTI v. CEBALLOS

Syllabus

ployee has no First Amendment cause of action based on the em-ployer’s reaction to the speech. See Connick, supra, at 147. If the answer is yes, the possibility of a First Amendment claim arises. The question becomes whether the government employer had an ade-quate justification for treating the employee differently from any other member of the general public. See Pickering, supra, at 568. This consideration reflects the importance of the relationship be-tween the speaker’s expressions and employment. Without a signifi-cant degree of control over its employees’ words and actions, a gov-ernment employer would have little chance to provide public services efficiently. Cf. Connick, supra, at 143. Thus, a government entityhas broader discretion to restrict speech when it acts in its employer role, but the restrictions it imposes must be directed at speech thathas some potential to affect its operations. On the other hand, a citi-zen who works for the government is nonetheless still a citizen. The First Amendment limits a public employer’s ability to leverage the employment relationship to restrict, incidentally or intentionally, theliberties employees enjoy in their capacities as private citizens. See Perry v. Sindermann, 408 U. S. 593, 597. So long as employees arespeaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employersto operate efficiently and effectively. See, e.g., Connick, supra, at 147. Pp. 5–8.

(b) Proper application of the Court’s precedents leads to the conclu-sion that the First Amendment does not prohibit managerial disci-pline based on an employee’s expressions made pursuant to official responsibilities. Because Ceballos’ memo falls into this category, his allegation of unconstitutional retaliation must fail. The dispositive factor here is not that Ceballos expressed his views inside his office, rather than publicly, see, e.g., Givhan v. Western Line Consol. School Dist., 439 U. S. 410, 414, nor that the memo concerned the subject mat-ter of his employment, see, e.g., Pickering, 391 U. S, at 573. Rather, the controlling factor is that Ceballos’ expressions were made pursuant tohis official duties. That consideration distinguishes this case fromthose in which the First Amendment provides protection against dis-cipline. Ceballos wrote his disposition memo because that is part of what he was employed to do. He did not act as a citizen by writing it.The fact that his duties sometimes required him to speak or writedoes not mean his supervisors were prohibited from evaluating his performance. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any libertiesthe employee might have enjoyed as a private citizen. It simply re-flects the exercise of employer control over what the employer itselfhas commissioned or created. Cf. Rosenberger v. Rector and Visitors

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Syllabus

of Univ. of Va., 515 U. S. 819, 833. This result is consistent with the Court’s prior emphasis on the potential societal value of employeespeech and on affording government employers sufficient discretion tomanage their operations. Ceballos’ proposed contrary rule, adopted bythe Ninth Circuit, would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of com-munications between and among government employees and theirsuperiors in the course of official business. This displacement ofmanagerial discretion by judicial supervision finds no support in the Court’s precedents. The doctrinal anomaly the Court of Appeals per-ceived in compelling public employers to tolerate certain employeespeech made publicly but not speech made pursuant to an employee’sassigned duties misconceives the theoretical underpinnings of thisCourt’s decisions and is unfounded as a practical matter. Pp. 8–13.

(c) Exposing governmental inefficiency and misconduct is a matterof considerable significance, and various measures have been adopted to protect employees and provide checks on supervisors who would or-der unlawful or otherwise inappropriate actions. These include federal and state whistle-blower protection laws and labor codes and, for gov-ernment attorneys, rules of conduct and constitutional obligations apart from the First Amendment. However, the Court’s precedentsdo not support the existence of a constitutional cause of action behindevery statement a public employee makes in the course of doing his or her job. Pp. 13–14.

361 F. 3d 1168, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion. SOUTER, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined. BREYER, J., filed a dissenting opinion.

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Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Wash-ington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.


No. 04–473

GIL GARCETTI, ET AL., PETITIONERS v. RICHARD CEBALLOS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[May 30, 2006]

JUSTICE KENNEDY delivered the opinion of the Court. It is well settled that “a State cannot condition public

employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expres-sion.” Connick v. Myers, 461 U. S. 138, 142 (1983). The question presented by the instant case is whether the First Amendment protects a government employee fromdiscipline based on speech made pursuant to the em-ployee’s official duties.

I Respondent Richard Ceballos has been employed since

1989 as a deputy district attorney for the Los AngelesCounty District Attorney’s Office. During the periodrelevant to this case, Ceballos was a calendar deputy inthe office’s Pomona branch, and in this capacity he exer-cised certain supervisory responsibilities over other law-yers. In February 2000, a defense attorney contacted Ceballos about a pending criminal case. The defense attorney said there were inaccuracies in an affidavit used to obtain a critical search warrant. The attorney informedCeballos that he had filed a motion to traverse, or chal-



lenge, the warrant, but he also wanted Ceballos to review the case. According to Ceballos, it was not unusual for defense attorneys to ask calendar deputies to investigate aspects of pending cases.

After examining the affidavit and visiting the location itdescribed, Ceballos determined the affidavit contained serious misrepresentations. The affidavit called a long driveway what Ceballos thought should have been re-ferred to as a separate roadway. Ceballos also questioned the affidavit’s statement that tire tracks led from a stripped-down truck to the premises covered by the war-rant. His doubts arose from his conclusion that the road-way’s composition in some places made it difficult or im-possible to leave visible tire tracks.

Ceballos spoke on the telephone to the warrant affiant, a deputy sheriff from the Los Angeles County Sheriff’s Department, but he did not receive a satisfactory explana-tion for the perceived inaccuracies. He relayed his findings to his supervisors, petitioners Carol Najera and Frank Sundstedt, and followed up by preparing a dispositionmemorandum. The memo explained Ceballos’ concerns and recommended dismissal of the case. On March 2, 2000, Ceballos submitted the memo to Sundstedt for his review. A few days later, Ceballos presented Sundstedt with an-other memo, this one describing a second telephone con-versation between Ceballos and the warrant affiant.

Based on Ceballos’ statements, a meeting was held to dis-cuss the affidavit. Attendees included Ceballos, Sundstedt, and Najera, as well as the warrant affiant and other em-ployees from the sheriff’s department. The meeting alleg-edly became heated, with one lieutenant sharply criticiz-ing Ceballos for his handling of the case.

Despite Ceballos’ concerns, Sundstedt decided to pro-ceed with the prosecution, pending disposition of the defense motion to traverse. The trial court held a hearing on the motion. Ceballos was called by the defense and

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recounted his observations about the affidavit, but the trial court rejected the challenge to the warrant.

Ceballos claims that in the aftermath of these events he was subjected to a series of retaliatory employment actions. The actions included reassignment from his calendar dep-uty position to a trial deputy position, transfer to anothercourthouse, and denial of a promotion. Ceballos initiated an employment grievance, but the grievance was deniedbased on a finding that he had not suffered any retaliation. Unsatisfied, Ceballos sued in the United States District Court for the Central District of California, asserting, as relevant here, a claim under Rev. Stat. §1979, 42 U. S. C.§1983. He alleged petitioners violated the First and Four-teenth Amendments by retaliating against him based onhis memo of March 2.

Petitioners responded that no retaliatory actions weretaken against Ceballos and that all the actions of which he complained were explained by legitimate reasons such asstaffing needs. They further contended that, in any event, Ceballos’ memo was not protected speech under the FirstAmendment. Petitioners moved for summary judgment,and the District Court granted their motion. Noting thatCeballos wrote his memo pursuant to his employmentduties, the court concluded he was not entitled to First Amendment protection for the memo’s contents. It held in the alternative that even if Ceballos’ speech was constitu-tionally protected, petitioners had qualified immunitybecause the rights Ceballos asserted were not clearlyestablished.

The Court of Appeals for the Ninth Circuit reversed,holding that “Ceballos’s allegations of wrongdoing in the memorandum constitute protected speech under the FirstAmendment.” 361 F. 3d 1168, 1173 (2004). In reaching its conclusion the court looked to the First Amendment analysis set forth in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968), and



Connick, 461 U. S. 138. Connick instructs courts to begin byconsidering whether the expressions in question were madeby the speaker “as a citizen upon matters of public concern.” See id., at 146–147. The Court of Appeals determined that Ceballos’ memo, which recited what he thought to be gov-ernmental misconduct, was “inherently a matter of publicconcern.” 361 F. 3d, at 1174. The court did not, however, consider whether the speech was made in Ceballos’ capacity as a citizen. Rather, it relied on Circuit precedent rejecting the idea that “a public employee’s speech is deprived of FirstAmendment protection whenever those views are expressed, to government workers or others, pursuant to an employ-ment responsibility.” Id., at 1174–1175 (citing cases includ-ing Roth v. Veteran’s Admin. of Govt. of United States, 856 F. 2d 1401 (CA9 1988)).

Having concluded that Ceballos’ memo satisfied the public-concern requirement, the Court of Appeals pro-ceeded to balance Ceballos’ interest in his speech against his supervisors’ interest in responding to it. See Pickering, supra, at 568. The court struck the balance in Ceballos’ favor, noting that petitioners “failed even to suggest dis-ruption or inefficiency in the workings of the DistrictAttorney’s Office” as a result of the memo. See 361 F. 3d, at 1180. The court further concluded that Ceballos’ First Amendment rights were clearly established and thatpetitioners’ actions were not objectively reasonable. See id., at 1181–1182.

Judge O’Scannlain specially concurred. Agreeing thatthe panel’s decision was compelled by Circuit precedent, he nevertheless concluded Circuit law should be revisited and overruled. See id., at 1185. Judge O’Scannlain em-phasized the distinction “between speech offered by a public employee acting as an employee carrying out his orher ordinary job duties and that spoken by an employee acting as a citizen expressing his or her personal views on disputed matters of public import.” Id., at 1187. In his

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view, “when public employees speak in the course of carry-ing out their routine, required employment obligations, they have no personal interest in the content of that speechthat gives rise to a First Amendment right.” Id., at 1189.

We granted certiorari, 543 U. S. 1186 (2005), and we now reverse.

II As the Court’s decisions have noted, for many years “the

unchallenged dogma was that a public employee had noright to object to conditions placed upon the terms ofemployment—including those which restricted the exer-cise of constitutional rights.” Connick, 461 U. S., at 143. That dogma has been qualified in important respects. See id., at 144–145. The Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters ofpublic concern. See, e.g., Pickering, supra, at 568; Connick, supra, at 147; Rankin v. McPherson, 483 U. S. 378, 384 (1987); United States v. Treasury Employees, 513 U. S. 454, 466 (1995).

Pickering provides a useful starting point in explainingthe Court’s doctrine. There the relevant speech was ateacher’s letter to a local newspaper addressing issues including the funding policies of his school board. 391 U. S., at 566. “The problem in any case,” the Court stated, “is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id., at 568. The Court found the teacher’s speech “neither [was] shown nor can be pre-sumed to have in any way either impeded the teacher’sproper performance of his daily duties in the classroom or



to have interfered with the regular operation of the schools generally.” Id., at 572–573 (footnote omitted). Thus, the Court concluded that “the interest of the school admini-stration in limiting teachers’ opportunities to contribute topublic debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.” Id., at 573.

Pickering and the cases decided in its wake identify twoinquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. See id., at 568. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction tothe speech. See Connick, supra, at 147. If the answer is yes, then the possibility of a First Amendment claimarises. The question becomes whether the relevant gov-ernment entity had an adequate justification for treating the employee differently from any other member of thegeneral public. See Pickering, 391 U. S., at 568. This consideration reflects the importance of the relationshipbetween the speaker’s expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restric-tions it imposes must be directed at speech that has somepotential to affect the entity’s operations.

To be sure, conducting these inquiries sometimes hasproved difficult. This is the necessary product of “the enor-mous variety of fact situations in which critical statementsby teachers and other public employees may be thought by their superiors . . . to furnish grounds for dismissal.” Id., at 569. The Court’s overarching objectives, though, are evident.

When a citizen enters government service, the citizen bynecessity must accept certain limitations on his or herfreedom. See, e.g., Waters v. Churchill, 511 U. S. 661, 671 (1994) (plurality opinion) (“[T]he government as employer

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indeed has far broader powers than does the governmentas sovereign”). Government employers, like private em-ployers, need a significant degree of control over their employees’ words and actions; without it, there would belittle chance for the efficient provision of public services.Cf. Connick, supra, at 143 (“[G]overnment offices could not function if every employment decision became a constitu-tional matter”). Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies orimpair the proper performance of governmental functions.

At the same time, the Court has recognized that a citi-zen who works for the government is nonetheless a citizen. The First Amendment limits the ability of a public em-ployer to leverage the employment relationship to restrict,incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. See Perry v. Sinder-mann, 408 U. S. 593, 597 (1972). So long as employees are speaking as citizens about matters of public concern, theymust face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. See, e.g., Connick, supra, at 147 (“Our responsibility is toensure that citizens are not deprived of fundamentalrights by virtue of working for the government”).

The Court’s employee-speech jurisprudence protects, of course, the constitutional rights of public employees. Yet the First Amendment interests at stake extend beyond the individual speaker. The Court has acknowledged the importance of promoting the public’s interest in receiving the well-informed views of government employees engag-ing in civic discussion. Pickering again provides an in-structive example. The Court characterized its holding asrejecting the attempt of school administrators to “limi[t] teachers’ opportunities to contribute to public debate.” 391 U. S., at 573. It also noted that teachers are “the members of a community most likely to have informed and



definite opinions” about school expenditures. Id., at 572. The Court’s approach acknowledged the necessity forinformed, vibrant dialogue in a democratic society. It suggested, in addition, that widespread costs may arise when dialogue is repressed. The Court’s more recent cases have expressed similar concerns. See, e.g., San Diego v. Roe, 543 U. S. 77, 82 (2004) (per curiam) (“Were [publicemployees] not able to speak on [the operation of their employers], the community would be deprived of informedopinions on important public issues. The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it” (citation omitted)); cf. Treasury Employees, 513 U. S., at 470 (“The large-scale disincentive to Government employ-ees’ expression also imposes a significant burden on thepublic’s right to read and hear what the employees would otherwise have written and said”).

The Court’s decisions, then, have sought both to pro-mote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions.See, e.g., Rankin, 483 U. S., at 384 (recognizing “the dualrole of the public employer as a provider of public services and as a government entity operating under the constraintsof the First Amendment”). Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empowerthem to “constitutionalize the employee grievance.” Con-nick, 461 U. S., at 154.

III With these principles in mind we turn to the instant

case. Respondent Ceballos believed the affidavit used to obtain a search warrant contained serious misrepresenta-tions. He conveyed his opinion and recommendation in a memo to his supervisor. That Ceballos expressed his

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views inside his office, rather than publicly, is not disposi-tive. Employees in some cases may receive First Amend-ment protection for expressions made at work. See, e.g., Givhan v. Western Line Consol. School Dist., 439 U. S. 410, 414 (1979). Many citizens do much of their talking inside their respective workplaces, and it would not serve the goal of treating public employees like “any member ofthe general public,” Pickering, 391 U. S., at 573, to hold that all speech within the office is automatically exposed to restriction.

The memo concerned the subject matter of Ceballos’ em-ployment, but this, too, is nondispositive. The First Amend-ment protects some expressions related to the speaker’s job. See, e.g., ibid.; Givhan, supra, at 414. As the Court noted in Pickering: “Teachers are, as a class, the members of a com-munity most likely to have informed and definite opinions asto how funds allotted to the operation of the schools shouldbe spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” 391 U. S., at 572. The same is true of manyother categories of public employees.

The controlling factor in Ceballos’ case is that his ex-pressions were made pursuant to his duties as a calendar deputy. See Brief for Respondent 4 (“Ceballos does not dispute that he prepared the memorandum ‘pursuant to his duties as a prosecutor’ ”). That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a responsibil-ity to advise his supervisor about how best to proceed witha pending case—distinguishes Ceballos’ case from those inwhich the First Amendment provides protection againstdiscipline. We hold that when public employees makestatements pursuant to their official duties, the employeesare not speaking as citizens for First Amendment pur-poses, and the Constitution does not insulate their com-munications from employer discipline.

Ceballos wrote his disposition memo because that is



part of what he, as a calendar deputy, was employed to do.It is immaterial whether he experienced some personal gratification from writing the memo; his First Amendment rights do not depend on his job satisfaction. The signifi-cant point is that the memo was written pursuant toCeballos’ official duties. Restricting speech that owes its existence to a public employee’s professional responsibili-ties does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects theexercise of employer control over what the employer itself has commissioned or created. Cf. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833 (1995) (“[W]hen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes”). Contrast, for example, the expressions made by the speaker in Pickering, whose letter to the newspaper had no official significance and bore similari-ties to letters submitted by numerous citizens every day.

Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as super-vising attorneys, investigating charges, and preparing filings. In the same way he did not speak as a citizen bywriting a memo that addressed the proper disposition of a pending criminal case. When he went to work and per-formed the tasks he was paid to perform, Ceballos acted as a government employee. The fact that his duties some-times required him to speak or write does not meanhis supervisors were prohibited from evaluating hisperformance.

This result is consistent with our precedents’ attentionto the potential societal value of employee speech. See supra, at 7–8. Refusing to recognize First Amendmentclaims based on government employees’ work product doesnot prevent them from participating in public debate. The employees retain the prospect of constitutional protectionfor their contributions to the civic discourse. This prospect

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of protection, however, does not invest them with a rightto perform their jobs however they see fit.

Our holding likewise is supported by the emphasis of our precedents on affording government employers sufficient discretion to manage their operations. Employers have heightened interests in controlling speech made by an em-ployee in his or her professional capacity. Official communi-cations have official consequences, creating a need for sub-stantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate,demonstrate sound judgment, and promote the employer’s mission. Ceballos’ memo is illustrative. It demanded the attention of his supervisors and led to a heated meeting withemployees from the sheriff’s department. If Ceballos’ superi-ors thought his memo was inflammatory or misguided, they had the authority to take proper corrective action.

Ceballos’ proposed contrary rule, adopted by the Courtof Appeals, would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among govern-ment employees and their superiors in the course of offi-cial business. This displacement of managerial discretionby judicial supervision finds no support in our precedents. When an employee speaks as a citizen addressing a matterof public concern, the First Amendment requires a delicatebalancing of the competing interests surrounding thespeech and its consequences. When, however, the em-ployee is simply performing his or her job duties, there isno warrant for a similar degree of scrutiny. To hold oth-erwise would be to demand permanent judicial interven-tion in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.

The Court of Appeals based its holding in part on what it perceived as a doctrinal anomaly. The court suggestedit would be inconsistent to compel public employers to



tolerate certain employee speech made publicly but not speech made pursuant to an employee’s assigned duties. See 361 F. 3d, at 1176. This objection misconceives the theoretical underpinnings of our decisions. Employees whomake public statements outside the course of performing their official duties retain some possibility of First Amend-ment protection because that is the kind of activity en-gaged in by citizens who do not work for the government. The same goes for writing a letter to a local newspaper, see Pickering, 391 U. S. 563, or discussing politics with a co-worker, see Rankin, 483 U. S. 378. When a publicemployee speaks pursuant to employment responsibilities, however, there is no relevant analogue to speech by citi-zens who are not government employees.

The Court of Appeals’ concern also is unfounded as apractical matter. The perceived anomaly, it should be noted, is limited in scope: It relates only to the expressions an employee makes pursuant to his or her official respon-sibilities, not to statements or complaints (such as those atissue in cases like Pickering and Connick) that are madeoutside the duties of employment. If, moreover, a govern-ment employer is troubled by the perceived anomaly, it has the means at hand to avoid it. A public employer that wishes to encourage its employees to voice concerns pri-vately retains the option of instituting internal policiesand procedures that are receptive to employee criticism. Giving employees an internal forum for their speech will discourage them from concluding that the safest avenue of expression is to state their views in public.

Proper application of our precedents thus leads to the conclusion that the First Amendment does not prohibitmanagerial discipline based on an employee’s expressionsmade pursuant to official responsibilities. Because Cebal-los’ memo falls into this category, his allegation of uncon-stitutional retaliation must fail.

Two final points warrant mentioning. First, as indi-

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cated above, the parties in this case do not dispute thatCeballos wrote his disposition memo pursuant to his em-ployment duties. We thus have no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate. We reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions. See post, at 4, n. 2 (SOUTER, J., dissenting). The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job descrip-tion is neither necessary nor sufficient to demonstrate thatconducting the task is within the scope of the employee’s professional duties for First Amendment purposes. Second, JUSTICE SOUTER suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. See post, at 12–13. There is some argument that expression related to academicscholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.

IV Exposing governmental inefficiency and misconduct is a

matter of considerable significance. As the Court noted in Connick, public employers should, “as a matter of good judgment,” be “receptive to constructive criticism offeredby their employees.” 461 U. S., at 149. The dictates of sound judgment are reinforced by the powerful network oflegislative enactments—such as whistle-blower protection laws and labor codes—available to those who seek to



expose wrongdoing. See, e.g., 5 U. S. C. §2302(b)(8); Cal. Govt. Code Ann. §8547.8 (West 2005); Cal. Lab. Code Ann.§1102.5 (West Supp. 2006). Cases involving governmentattorneys implicate additional safeguards in the form of,for example, rules of conduct and constitutional obliga-tions apart from the First Amendment. See, e.g., Cal. Rule Prof. Conduct 5–110 (2005) (“A member in government service shall not institute or cause to be instituted crimi-nal charges when the member knows or should know that the charges are not supported by probable cause”); Brady v. Maryland, 373 U. S. 83 (1963). These imperatives, aswell as obligations arising from any other applicable consti-tutional provisions and mandates of the criminal and civil laws, protect employees and provide checks on supervisorswho would order unlawful or otherwise inappropriate actions.

We reject, however, the notion that the First Amend-ment shields from discipline the expressions employees make pursuant to their professional duties. Our prece-dents do not support the existence of a constitutionalcause of action behind every statement a public employeemakes in the course of doing his or her job.

The judgment of the Court of Appeals is reversed, andthe case is remanded for proceedings consistent with this opinion.

It is so ordered.

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STEVENS, J., dissenting


No. 04–473



[May 30, 2006]

JUSTICE STEVENS, dissenting. The proper answer to the question “whether the First

Amendment protects a government employee from disci-pline based on speech made pursuant to the employee’s official duties,” ante, at 1, is “Sometimes,” not “Never.” Of course a supervisor may take corrective action when such speech is “inflammatory or misguided,” ante, at 11. But what if it is just unwelcome speech because it reveals facts that the supervisor would rather not have anyone else discover?*

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*See, e.g., Branton v. Dallas, 272 F. 3d 730 (CA5 2001) (police inter-nal investigator demoted by police chief after bringing the false testi-mony of a fellow officer to the attention of a city official); Miller v. Jones, 444 F. 3d 929, 936 (CA7 2006) (police officer demoted after opposing the police chief’s attempt to “us[e] his official position to coerce a financially independent organization into a potentially ruinous merger”); Delgado v. Jones, 282 F. 3d 511 (CA7 2002) (police officer sanctioned for reporting criminal activity that implicated a local politi-cal figure who was a good friend of the police chief); Herts v. Smith, 345 F. 3d 581 (CA8 2003) (school district official’s contract was not renewed after she gave frank testimony about the district’s desegregation efforts); Kincade v. Blue Springs, 64 F. 3d 389 (CA8 1995) (engineer fired after reporting to his supervisors that contractors were failing to


STEVENS, J., dissenting

As JUSTICE SOUTER explains, public employees are still citizens while they are in the office. The notion that there is a categorical difference between speaking as a citizenand speaking in the course of one’s employment is quite wrong. Over a quarter of a century has passed since then-Justice Rehnquist, writing for a unanimous Court, re-jected “the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly.” Givhan v. Western Line Consol. School Dist., 439 U. S. 410, 414 (1979). We had no difficulty recognizing that the First Amendment applied when Bessie Givhan, an English teacher, raised concerns aboutthe school’s racist employment practices to the principal.See id., at 413–416. Our silence as to whether or not her speech was made pursuant to her job duties demonstrates that the point was immaterial. That is equally true today,for it is senseless to let constitutional protection for ex-actly the same words hinge on whether they fall within ajob description. Moreover, it seems perverse to fashion a new rule that provides employees with an incentive tovoice their concerns publicly before talking frankly to their superiors.

While today’s novel conclusion to the contrary may notbe “inflammatory,” for the reasons stated in JUSTICE SOUTER’s dissenting opinion it is surely “misguided.”

—————— complete dam-related projects and that the resulting dam might be structurally unstable); Fox v. District of Columbia, 83 F. 3d 1491, 1494 (CADC 1996) (D. C. Lottery Board security officer fired after informing the police about a theft made possible by “rather drastic managerial ineptitude”).

_________________

_________________

Cite as: 547 U. S. ____ (2006) 1

SOUTER, J., dissenting


No. 04–473



[May 30, 2006]

JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE GINSBURG join, dissenting.

The Court holds that “when public employees makestatements pursuant to their official duties, the employeesare not speaking as citizens for First Amendment pur-poses, and the Constitution does not insulate their com-munications from employer discipline.” Ante, at 9. I respectfully dissent. I agree with the majority that a government employer has substantial interests in effectuat-ing its chosen policy and objectives, and in demandingcompetence, honesty, and judgment from employees who speak for it in doing their work. But I would hold that private and public interests in addressing official wrongdo-ing and threats to health and safety can outweigh the gov-ernment’s stake in the efficient implementation of policy,and when they do public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection.

I Open speech by a private citizen on a matter of public

importance lies at the heart of expression subject to pro-tection by the First Amendment. See, e.g., Schenck v. Pro-Choice Network of Western N. Y., 519 U. S. 357, 377 (1997). At the other extreme, a statement by a government em-



ployee complaining about nothing beyond treatment underpersonnel rules raises no greater claim to constitutional protection against retaliatory response than the remarksof a private employee. See Connick v. Myers, 461 U. S. 138, 147 (1983). In between these points lies a public em-ployee’s speech unwelcome to the government but on a significant public issue. Such an employee speaking as acitizen, that is, with a citizen’s interest, is protected from reprisal unless the statements are too damaging to thegovernment’s capacity to conduct public business to be justified by any individual or public benefit thought toflow from the statements. Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968). Entitlement to protection is thus not absolute.

This significant, albeit qualified, protection of public employees who irritate the government is understood toflow from the First Amendment, in part, because a gov-ernment paycheck does nothing to eliminate the value to an individual of speaking on public matters, and there isno good reason for categorically discounting a speaker’sinterest in commenting on a matter of public concern just because the government employs him. Still, the First Amendment safeguard rests on something more, being the value to the public of receiving the opinions and informa-tion that a public employee may disclose. “Government employees are often in the best position to know what ails the agencies for which they work.” Waters v. Churchill, 511 U. S. 661, 674 (1994).

The reason that protection of employee speech is quali-fied is that it can distract co-workers and supervisors fromtheir tasks at hand and thwart the implementation of legitimate policy, the risks of which grow greater thecloser the employee’s speech gets to commenting on his own workplace and responsibilities. It is one thing for anoffice clerk to say there is waste in government and quiteanother to charge that his own department pays full-time

3 Cite as: 547 U. S. ____ (2006)


salaries to part-time workers. Even so, we have regarded eligibility for protection by Pickering balancing as the proper approach when an employee speaks critically about the administration of his own government employer. In Givhan v. Western Line Consol. School Dist., 439 U. S. 410 (1979), we followed Pickering when a teacher was fired for complaining to a superior about the racial composition ofthe school’s administrative, cafeteria, and library staffs, 439 U. S., at 413–414, and the same point was clear in Madison Joint School Dist. No. 8 v. Wisconsin Employment Relations Comm’n, 429 U. S. 167 (1976). That case was decided, in part, with reference to the Pickering framework, and the Court there held that a schoolteacher speaking out on behalf of himself and others at a public school board meeting could not be penalized for criticizing pending collec-tive-bargaining negotiations affecting professional employ-ment. Madison noted that the teacher “addressed the school board not merely as one of its employees but also as a con-cerned citizen, seeking to express his views on an importantdecision of his government.” 429 U. S., at 174–175. In each case, the Court realized that a public employee can wear acitizen’s hat when speaking on subjects closely tied to theemployee’s own job, and Givhan stands for the same conclu-sion even when the speech is not addressed to the public atlarge. Cf. Pegram v. Herdrich, 530 U. S. 211, 225 (2000)(recognizing that, factually, a trustee under the EmployeeRetirement Income Security Act of 1974 can both act asERISA fiduciary and act on behalf of the employer).

The difference between a case like Givhan and this one is that the subject of Ceballos’s speech fell within thescope of his job responsibilities, whereas choosing person-nel was not what the teacher was hired to do. The effect of the majority’s constitutional line between these two cases, then, is that a Givhan schoolteacher is protected whencomplaining to the principal about hiring policy, but aschool personnel officer would not be if he protested that



the principal disapproved of hiring minority job appli-cants. This is an odd place to draw a distinction,1 and while necessary judicial line-drawing sometimes looksarbitrary, any distinction obliges a court to justify itschoice. Here, there is no adequate justification for the majority’s line categorically denying Pickering protectionto any speech uttered “pursuant to . . . official duties,” ante, at 9.

As all agree, the qualified speech protection embodied in Pickering balancing resolves the tension between individ-ual and public interests in the speech, on the one hand, and the government’s interest in operating efficientlywithout distraction or embarrassment by talkative orheadline-grabbing employees. The need for a balance hardly disappears when an employee speaks on matters his job requires him to address; rather, it seems obvious that the individual and public value of such speech is no less, and may well be greater, when the employee speakspursuant to his duties in addressing a subject he knowsintimately for the very reason that it falls within his duties.2

—————— 1 It seems stranger still in light of the majority’s concession of some

First Amendment protection when a public employee repeats state-ments made pursuant to his duties but in a separate, public forum or in a letter to a newspaper. Ante, at 12.

2 I do not say the value of speech “pursuant to . . . duties” will alwaysbe greater, because I am pessimistic enough to expect that one responseto the Court’s holding will be moves by government employers toexpand stated job descriptions to include more official duties and soexclude even some currently protectable speech from First Amendmentpurview. Now that the government can freely penalize the school personnel officer for criticizing the principal because speech on the subject falls within the personnel officer’s job responsibilities, the government may well try to limit the English teacher’s options by thesimple expedient of defining teachers’ job responsibilities expansively,investing them with a general obligation to ensure sound administra-tion of the school. Hence today’s rule presents the regrettable prospect that protection under Pickering v. Board of Ed. of Township High School

5 Cite as: 547 U. S. ____ (2006)


As for the importance of such speech to the individual, itstands to reason that a citizen may well place a very highvalue on a right to speak on the public issues he decides tomake the subject of his work day after day. Would anyonedoubt that a school principal evaluating the performance of teachers for promotion or pay adjustment retains a citizen’s interest in addressing the quality of teaching inthe schools? (Still, the majority indicates he could be fired without First Amendment recourse for fair but unfavor-able comment when the teacher under review is the super-intendent’s daughter.) Would anyone deny that a prosecu-tor like Richard Ceballos may claim the interest of anycitizen in speaking out against a rogue law enforcementofficer, simply because his job requires him to express a judgment about the officer’s performance? (But the major-ity says the First Amendment gives Ceballos no protec-tion, even if his judgment in this case was sound and appropriately expressed.)

Indeed, the very idea of categorically separating thecitizen’s interest from the employee’s interest ignores the fact that the ranks of public service include those who share the poet’s “object . . . to unite [m]y avocation and my vocation;”3 these citizen servants are the ones whose civic interest rises highest when they speak pursuant to their duties, and these are exactly the ones government em-ployers most want to attract.4 There is no question that —————— Dist. 205, Will Cty., 391 U. S. 563 (1968), may be diminished by expan-sive statements of employment duties.

The majority’s response, that the enquiry to determine duties is a “practical one,” ante, at 13, does not alleviate this concern. It sets out a standard that will not discourage government employers from settingduties expansively, but will engender litigation to decide which statedduties were actual and which were merely formal.

3 R. Frost, Two Tramps in Mud Time, Collected Poems, Prose, &Plays 251, 252 (R. Poirier & M. Richardson eds. 1995).

4 Not to put too fine a point on it, the Human Resources Division of the Los Angeles County District Attorney’s Office, Ceballos’s employer,



public employees speaking on matters they are obliged to address would generally place a high value on a right to speak, as any responsible citizen would.

Nor is there any reason to raise the counterintuitivequestion whether the public interest in hearing informed employees evaporates when they speak as required on some subject at the core of their jobs. Two Terms ago, werecalled the public value that the Pickering Court per-ceived in the speech of public employees as a class: “Un-derlying the decision in Pickering is the recognition thatpublic employees are often the members of the communitywho are likely to have informed opinions as to the opera-tions of their public employers, operations which are of

—————— is telling anyone who will listen that its work “provides the personalsatisfaction and fulfillment that comes with knowing you are contribut-ing essential services to the citizens of Los Angeles County.” Career Opportunities, http://da.co.la.ca.us/hr/default.htm (all Internet materi-als as visited May 25, 2006, and available in Clerk of Court’s case file).

The United States expresses the same interest in identifying the individual ideals of a citizen with its employees’ obligations to theGovernment. See Brief as Amicus Curiae 25 (stating that publicemployees are motivated to perform their duties “to serve the public”).Right now, for example, the U. S. Food and Drug Administration is appealing to physicians, scientists, and statisticians to work in the Center for Drug Evaluation and Research, with the message that they“can give back to [their] community, state, and country by making adifference in the lives of Americans everywhere.” Career Opportunities atCDER: You Can Make a Difference, http://www.fda.gov/cder/career/default.htm.Indeed, the Congress of the United States, by concurrent resolution,has previously expressly endorsed respect for a citizen’s obligations asthe prime responsibility of Government employees: “Any person inGovernment Service should: . . . [p]ut loyalty to the highest moralprinciples and to country above loyalty to persons, party, or Govern-ment department,” and shall “[e]xpose corruption wherever discovered,” Code of Ethics for Government Service, H. Con. Res. 175, 85th Cong.,2d Sess., 72 Stat. B12. Display of this Code in Government buildingswas once required by law, 94 Stat. 855; this obligation has been re-pealed, Office of Government Ethics Authorization Act of 1996, Pub. L.104–179, §4, 110 Stat. 1566.

http://da.co.la.ca.us/hr/default.htm

http://www.fda.gov/cder/career/default.htm

7 Cite as: 547 U. S. ____ (2006)


substantial concern to the public. Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues. The interest at stake is as much the public’s interest in receiv-ing informed opinion as it is the employee’s own right todisseminate it.” San Diego v. Roe, 543 U. S. 77, 82 (2004) (per curiam) (citation omitted). This is not a whit less true when an employee’s job duties require him to speak aboutsuch things: when, for example, a public auditor speaks onhis discovery of embezzlement of public funds, when abuilding inspector makes an obligatory report of an at-tempt to bribe him, or when a law enforcement officerexpressly balks at a superior’s order to violate constitu-tional rights he is sworn to protect. (The majority, how-ever, places all these speakers beyond the reach of First Amendment protection against retaliation.)

Nothing, then, accountable on the individual and publicside of the Pickering balance changes when an employeespeaks “pursuant” to public duties. On the side of the government employer, however, something is different,and to this extent, I agree with the majority of the Court. The majority is rightly concerned that the employee whospeaks out on matters subject to comment in doing his own work has the greater leverage to create office uproarsand fracture the government’s authority to set policy to becarried out coherently through the ranks. “Official com-munications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission,” ante, at 11. Up to a point, then, the majority makes good points: government needs civility in the workplace, consistency in policy, and honesty and competence in public service.

But why do the majority’s concerns, which we all share, require categorical exclusion of First Amendment protec-



tion against any official retaliation for things said on the job? Is it not possible to respect the unchallenged individ-ual and public interests in the speech through a Pickeringbalance without drawing the strange line I mentioned before, supra, at 3–4? This is, to be sure, a matter of judgment, but the judgment has to account for the un-doubted value of speech to those, and by those, whose specific public job responsibilities bring them face to facewith wrongdoing and incompetence in government, who refuse to avert their eyes and shut their mouths. And it has to account for the need actually to disrupt governmentif its officials are corrupt or dangerously incompetent. See n. 4, supra. It is thus no adequate justification for the suppression of potentially valuable information simply torecognize that the government has a huge interest in managing its employees and preventing the occasionallyirresponsible one from turning his job into a bully pulpit. Even there, the lesson of Pickering (and the object of mostconstitutional adjudication) is still to the point: whenconstitutionally significant interests clash, resist the demand for winner-take-all; try to make adjustments thatserve all of the values at stake.

Two reasons in particular make me think an adjustmentusing the basic Pickering balancing scheme is perfectlyfeasible here. First, the extent of the government’s legiti-mate authority over subjects of speech required by a public job can be recognized in advance by setting in effect a minimum heft for comments with any claim to outweighit. Thus, the risks to the government are great enough for us to hold from the outset that an employee commenting on subjects in the course of duties should not prevail onbalance unless he speaks on a matter of unusual impor-tance and satisfies high standards of responsibility in the way he does it. The examples I have already given indi-cate the eligible subject matter, and it is fair to say thatonly comment on official dishonesty, deliberately unconsti-

9 Cite as: 547 U. S. ____ (2006)


tutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee’s favor. If promulgation of this standard should fail to discouragemeritless actions premised on 42 U. S. C. §1983 (or Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971))before they get filed, the standard itself would sift themout at the summary-judgment stage.5

My second reason for adapting Pickering to the circum-stances at hand is the experience in Circuits that have recognized claims like Ceballos’s here. First Amendment protection less circumscribed than what I would recognizehas been available in the Ninth Circuit for over 17 years,and neither there nor in other Circuits that accept claimslike this one has there been a debilitating flood of litigation.There has indeed been some: as represented by Ceballos’s lawyer at oral argument, each year over the last five years, approximately 70 cases in the different Courts of Appealsand approximately 100 in the various District Courts. Tr. of Oral Arg. 58–59. But even these figures reflect a readinessto litigate that might well have been cooled by my viewabout the importance required before Pickering treatment is in order.

For that matter, the majority’s position comes with noguarantee against factbound litigation over whether a public employee’s statements were made “pursuant to . . . official duties,” ante, at 9. In fact, the majority invites such litigation by describing the enquiry as a “practicalone,” ante, at 13, apparently based on the totality of em-ployment circumstances.6 See n. 2, supra. Are prosecu-——————

5 As I also said, a public employer is entitled (and obliged) to imposehigh standards of honesty, accuracy, and judgment on employees who speak in doing their work. These criteria are not, however, likely to discourage meritless litigation or provide a handle for summary judg-ment. The employee who has spoken out, for example, is unlikely to blame himself for prior bad judgment before he sues for retaliation.

6 According to the majority’s logic, the litigation it encourages would



tors’ discretionary statements about cases addressed tothe press on the courthouse steps made “pursuant to their official duties”? Are government nuclear scientists’ com-plaints to their supervisors about a colleague’s improper handling of radioactive materials made “pursuant” to duties?

II The majority seeks support in two lines of argument

extraneous to Pickering doctrine. The one turns on a fallacious reading of cases on government speech, the other on a mistaken assessment of protection available under whistle-blower statutes.

A The majority accepts the fallacy propounded by the

county petitioners and the Federal Government as amicus that any statement made within the scope of public em-ployment is (or should be treated as) the government’sown speech, see ante, at 10, and should thus be differenti-ated as a matter of law from the personal statements the First Amendment protects, see Broadrick v. Oklahoma, 413 U. S. 601, 610 (1973). The majority invokes the inter-pretation set out in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995), of Rust v. Sullivan, 500 U. S. 173 (1991), which held there was no infringement ofthe speech rights of Title X funds recipients and their staffswhen the Government forbade any on-the-job counseling infavor of abortion as a method of family planning, id., at 192– 200. We have read Rust to mean that “when the govern-ment appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes.” Rosen-berger, supra, at 833.

The key to understanding the difference between this —————— have the unfortunate result of “demand[ing] permanent judicial inter-vention in the conduct of governmental operations,” ante, at 11.

11 Cite as: 547 U. S. ____ (2006)


case and Rust lies in the terms of the respective employ-ees’ jobs and, in particular, the extent to which thoseterms require espousal of a substantive position pre-scribed by the government in advance. Some public em-ployees are hired to “promote a particular policy” bybroadcasting a particular message set by the government,but not everyone working for the government, after all, is hired to speak from a government manifesto. See Legal Services Corporation v. Velazquez, 531 U. S. 533, 542 (2001). There is no claim or indication that Ceballos was hired to perform such a speaking assignment. He was paid to enforce the law by constitutional action: to exercise the county government’s prosecutorial power by actinghonestly, competently, and constitutionally. The only sense in which his position apparently required him to hew to a substantive message was at the relatively ab-stract point of favoring respect for law and its evenhanded enforcement, subjects that are not at the level of contro-versy in this case and were not in Rust. Unlike the doc-tors in Rust, Ceballos was not paid to advance one specific policy among those legitimately available, defined by a specific message or limited by a particular message for-bidden. The county government’s interest in his speech cannot therefore be equated with the terms of a specific, prescribed, or forbidden substantive position comparable to the Federal Government’s interest in Rust, and Rust is no authority for the notion that government may exerciseplenary control over every comment made by a publicemployee in doing his job.

It is not, of course, that the district attorney lackedinterest of a high order in what Ceballos might say. If his speech undercut effective, lawful prosecution, there would have been every reason to rein him in or fire him; a state-ment that created needless tension among law enforce-ment agencies would be a fair subject of concern, and the same would be true of inaccurate statements or false ones



made in the course of doing his work. But these interests on the government’s part are entirely distinct from anyclaim that Ceballos’s speech was government speech witha preset or proscribed content as exemplified in Rust. Nor did the county petitioners here even make such a claim intheir answer to Ceballos’s complaint, see n. 13, infra.

The fallacy of the majority’s reliance on Rosenberger’s understanding of Rust doctrine, moreover, portends a bloated notion of controllable government speech going well beyond the circumstances of this case. Consider the breadth of the new formulation:

“Restricting speech that owes its existence to a public employee’s professional responsibilities does not in-fringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.” Ante, at 10.

This ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teach-ing of a public university professor, and I have to hopethat today’s majority does not mean to imperil FirstAmendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write “pursuant to official duties.” See Grutter v. Bollinger, 539 U. S. 306, 329 (2003) (“We have long recog-nized that, given the important purpose of public educationand the expansive freedoms of speech and thought associ-ated with the university environment, universities occupy a special niche in our constitutional tradition”); Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 603 (1967) (“Our Nation is deeply committed to safeguard-ing academic freedom, which is of transcendent value to allof us and not merely to the teachers concerned. That free-dom is therefore a special concern of the First Amendment,which does not tolerate laws that cast a pall of orthodoxy

13 Cite as: 547 U. S. ____ (2006)


over the classroom. ‘The vigilant protection of constitutionalfreedoms is nowhere more vital than in the community ofAmerican schools’” (quoting Shelton v. Tucker, 364 U. S. 479, 487 (1960))); Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957) (a governmental enquiry into the contents of a scholar’s lectures at a state university “unquestionably wasan invasion of [his] liberties in the areas of academic free-dom and political expression—areas in which governmentshould be extremely reticent to tread”).

B The majority’s second argument for its disputed limita-

tion of Pickering doctrine is that the First Amendment has little or no work to do here owing to an assertedly compre-hensive complement of state and national statutes protect-ing government whistle-blowers from vindictive bosses. See ante, at 13–14. But even if I close my eyes to the tenet that “ ‘[t]he applicability of a provision of the Constitutionhas never depended on the vagaries of state or federal law,’” Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 680 (1996), the majority’s counsel to rest easy fails onits own terms.7

To begin with, speech addressing official wrongdoingmay well fall outside protected whistle-blowing, defined in the classic sense of exposing an official’s fault to a third party or to the public; the teacher in Givhan, for example, who raised the issue of unconstitutional hiring bias, would not have qualified as that sort of whistle-blower, for she ——————

7 Even though this Court has recognized that 42 U. S. C. §1983 “doesnot authorize a suit for every alleged violation of federal law,” Livadas v. Bradshaw, 512 U. S. 107, 132 (1994), the rule is that “§1983 remains a generally and presumptively available remedy for claimed violations offederal law,” id., at 133. Individual enforcement under §1983 is rendered unavailable for alleged violations of federal law when the underlyingstatutory provision is part of a federal statutory scheme clearly incom-patible with individual enforcement under §1983. See Rancho Palos Verdes v. Abrams, 544 U. S. 113, 119–120 (2005).



was fired after a private conversation with the schoolprincipal. In any event, the combined variants of statu-tory whistle-blower definitions and protections add up to apatchwork, not a showing that worries may be remitted to legislatures for relief. See D. Westman & N. Modesitt, Whistleblowing: Law of Retaliatory Discharge 67–75, 281–307 (2d ed. 2004). Some state statutes protect all govern-ment workers, including the employees of municipalities and other subdivisions;8 others stop at state employees.9

Some limit protection to employees who tell their bossesbefore they speak out;10 others forbid bosses from imposingany requirement to warn.11 As for the federal Whistle-blower Protection Act of 1989, 5 U. S. C. §1213 et seq., current case law requires an employee complaining of retaliation to show “ ‘irrefragable proof ’ ” that the person criticized was not acting in good faith and in compliance with the law, see Lachance v. White, 174 F. 3d 1378, 1381 (CA Fed. 1999), cert. denied, 528 U. S. 1153 (2000). And ——————

8 Del. Code Ann., Tit. 29, §5115 (2003); Fla. Stat. §112.3187 (2003);Haw. Rev. Stat. §378–61 (1993); Ky. Rev. Stat. Ann. §61.101 (West 2005); Mass. Gen. Laws Ann., ch. 149, §185 (West 2004); Nev. Rev. Stat. §281.611 (2003); N. H. Rev. Stat. Ann. §275–E:1 (Supp. 2005);Ohio Rev. Code Ann. §4113.51 (Lexis 2001); Tenn. Code Ann. §50–1–304 (2006 Cum. Supp.).

9Ala. Code §36–26A–1 et seq. (2001); Colo. Rev. Stat. §24–50.5–101 et seq. (2004); Iowa Code Ann. §70A.28 et seq. (1999); Kan. Stat. Ann. §75–2973 (2003 Cum. Supp.); Mo. Rev. Stat. §105.055 (2004 Cum. Supp.); N. C. Gen. Stat. Ann. §126–84 (Lexis 2003); 2 Okla. Stat., Tit. 74, §840–2.5 et seq. (West 2005 Supp.); Wash. Rev. Code §42.40.010 (2000); Wyo. Stat. Ann. §9–11–102 (2003).

10 Idaho Code §6–2104(1)(a) (Lexis 2004); Me. Rev. Stat. Ann., Tit. 26, §833(2) (1988); Mass. Gen. Laws Ann., ch. 149, §185(c)(1) (West 2004);N. H. Rev. Stat. Ann. §275–E:2(II) (1999); N. J. Stat. Ann. §34:19–4(West 2000); N. Y. Civ. Serv. Law Ann. §75–b(2)(b) (West 1999); Wyo. Stat. Ann. §9–11–103(b) (2003).

11 Kan. Stat. Ann. §75–2973(d)(2) (Cum. Supp. 2003); Ky. Rev. Stat.Ann. §61.102(1) (West 2005); Mo. Rev. Stat. §105.055(2) (2004 Cum.Supp.); 2 Okla. Stat., Tit. 74, §840–2.5(B)(4) (West 2005 Supp.); Ore. Rev. Stat. §659A.203(1)(c) (2003).

15 Cite as: 547 U. S. ____ (2006)


federal employees have been held to have no protection for disclosures made to immediate supervisors, see Willis v. Department of Agriculture, 141 F. 3d 1139, 1143 (CA Fed. 1998); Horton v. Department of Navy, 66 F. 3d 279, 282 (CA Fed. 1995), cert. denied, 516 U. S. 1176 (1996), or for statements of facts publicly known already, see Francisco v. Office of Personnel Management, 295 F. 3d 1310, 1314 (CA Fed. 2002). Most significantly, federal employeeshave been held to be unprotected for statements made inconnection with normal employment duties, Huffman v. Office of Personnel Management, 263 F. 3d 1341, 1352 (CA Fed. 2001), the very speech that the majority says will becovered by “the powerful network of legislative enactments . . . available to those who seek to expose wrongdoing,” ante, at 13–14.12 My point is not to disparage particularstatutes or speak here to the merits of interpretations byother federal courts, but merely to show the current un-derstanding of statutory protection: individuals doing the same sorts of governmental jobs and saying the same sortsof things addressed to civic concerns will get different protection depending on the local, state, or federal juris-dictions that happened to employ them.

III The Court remands because the Court of Appeals con-

sidered only the disposition memorandum and because Ceballos charges retaliation for some speech apparentlyoutside the ambit of utterances “pursuant to official du-ties.” When the Court of Appeals takes up this case onceagain, it should consider some of the following facts thatescape emphasis in the majority opinion owing to its fo-cus.13 Ceballos says he sought his position out of a per-——————

12 See n. 4, supra. 13 This case comes to the Court on the motions of petitioners for sum-

mary judgment, and as such, “[t]he evidence of [Ceballos] is to bebelieved, and all justifiable inferences are to be drawn in his favor.”



sonal commitment to perform civic work. After showinghis superior, petitioner Frank Sunstedt, the disposition memorandum at issue in this case, Ceballos complied with Sunstedt’s direction to tone down some accusatory rhetoricout of concern that the memorandum would be unneces-sarily incendiary when shown to the Sheriff’s Department.After meeting with members of that department, Ceballos told his immediate supervisor, petitioner Carol Najera,that he thought Brady v. Maryland, 373 U. S. 83 (1963), obliged him to give the defense his internal memorandumas exculpatory evidence. He says that Najera responded by ordering him to write a new memorandum containing nothing but the deputy sheriff’s statements, but that hebalked at that. Instead, he proposed to turn over the existing memorandum with his own conclusions redactedas work product, and this is what he did. The issue over revealing his conclusions arose again in preparing for the suppression hearing. Ceballos maintains that Sunstedt ordered Najera, representing the prosecution, to give thetrial judge a full picture of the circumstances, but that Najera told Ceballos he would suffer retaliation if he testified that the affidavit contained intentional fabrica-tions. In any event, Ceballos’s testimony generally stopped short of his own conclusions. After the hearing,the trial judge denied the motion to suppress, explainingthat he found grounds independent of the challenged material sufficient to show probable cause for the warrant.

Ceballos says that over the next six months his supervi-sors retaliated against him14 not only for his written re-—————— Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986).

14 Sunstedt demoted Ceballos to a trial deputy; his only murder case was reassigned to a junior colleague with no experience in homicide matters, and no new murder cases were assigned to him; then-DistrictAttorney Gil Garcetti, relying in part on Sunstedt’s recommendation, denied Ceballos a promotion; finally, Sunstedt and Najera transferredhim to the Office’s El Monte Branch, requiring longer commuting.

17 Cite as: 547 U. S. ____ (2006)


ports, see ante, at 3, but also for his spoken statements tothem and his hearing testimony in the pending criminal case. While an internal grievance filed by Ceballos chal-lenging these actions was pending, Ceballos spoke at a meeting of the Mexican-American Bar Association about misconduct of the Sheriff’s Department in the criminal case, the lack of any policy at the District Attorney’s Officefor handling allegations of police misconduct, and theretaliatory acts he ascribed to his supervisors. Two dayslater, the office dismissed Ceballos’s grievance, a result he attributes in part to his Bar Association speech.

Ceballos’s action against petitioners under 42 U. S. C. §1983 claims that the individuals retaliated against him for exercising his First Amendment rights in submittingthe memorandum, discussing the matter with Najera andSunstedt, testifying truthfully at the hearing, and speak-ing at the bar meeting.15 As I mentioned, the Court of —————— Before transferring Ceballos, Najera offered him a choice between transferring and remaining at the Pomona Branch prosecuting misde-meanors instead of felonies. When Ceballos refused to choose, Najera transferred him.

15 The county petitioners’ position on these claims is difficult to followor, at least, puzzling. In their motion for summary judgment, theydenied that any of their actions was responsive to Ceballos’s criticism ofthe sheriff’s affidavit. E.g., App. 159–160, 170–172 (maintaining thatCeballos was transferred to the El Monte Branch because of the de-creased workload in the Pomona Branch and because he was next in a rotation to go there to serve as a “filing deputy”); id., at 160, 172–173 (contending that Ceballos’s murder case was reassigned to a juniorcolleague to give that attorney murder trial experience before he was transferred to the Juvenile Division of the District Attorney’s Office); id., at 161–162, 173–174 (arguing that Ceballos was denied a promotionby Garcetti despite Sunstedt’s stellar review of Ceballos, when Garcettiwas unaware of the matter in People v. Cuskey, the criminal case for which Ceballos wrote the pertinent disposition memorandum). Their reply to Ceballos’s opposition to summary judgment, however, shows that petitioners argued for a Pickering assessment (for want of a holding that Ceballos was categorically disentitled to any First Amendment protection) giving great weight in their favor to workplace



Appeals saw no need to address the protection afforded toCeballos’s statements other than the disposition memo-randum, which it thought was protected under the Pickering test. Upon remand, it will be open to the Court of Appeals to consider the application of Pickering to any retaliation shown for other statements; not all of those statements would have been made pursuant to official duties in any obvious sense, and the claim relating to truthful testimony in court must surely be analyzed inde-pendently to protect the integrity of the judicial process.

—————— disharmony and distrust caused by Ceballos’s actions. E.g., App. 477–478.

_________________

_________________

1 Cite as: 547 U. S. ____ (2006)

BREYER, J., dissenting


No. 04–473



[May 30, 2006]

JUSTICE BREYER, dissenting. This case asks whether the First Amendment protects

public employees when they engage in speech that both (1) involves matters of public concern and (2) takes place in the ordinary course of performing the duties of a govern-ment job. I write separately to explain why I cannot fully accept either the Court’s or JUSTICE SOUTER’s answer to the question presented.

I I begin with what I believe is common ground: (1) Because virtually all human interaction takes place

through speech, the First Amendment cannot offer all speech the same degree of protection. Rather, judges mustapply different protective presumptions in different con-texts, scrutinizing government’s speech-related restric-tions differently depending upon the general category ofactivity. Compare, e.g., Burson v. Freeman, 504 U. S. 191 (1992) (plurality opinion), (political speech), with Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557 (1980) (commercial speech), and Rust v. Sullivan, 500 U. S. 173 (1991) (government speech).

(2) Where the speech of government employees is at issue, the First Amendment offers protection only wherethe offer of protection itself will not unduly interfere with



legitimate governmental interests, such as the interest in efficient administration. That is because the government, like any employer, must have adequate authority to directthe activities of its employees. That is also because effi-cient administration of legislatively authorized programsreflects the constitutional need effectively to implement the public’s democratically determined will.

(3) Consequently, where a government employee speaks“as an employee upon matters only of personal interest,”the First Amendment does not offer protection. Connick v. Myers, 461 U. S. 138, 147 (1983). Where the employee speaks “as a citizen . . . upon matters of public concern,”the First Amendment offers protection but only where the speech survives a screening test. Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968). That test, called, in legal shorthand, “Pickering balancing,” requires a judge to “balance . . . the interests” of the employee “in commenting upon matters ofpublic concern and the interest of the State, as an em-ployer, in promoting the efficiency of the public services it performs through its employees.” Ibid. See also Connick, supra, at 142.

(4) Our prior cases do not decide what screening test a judge should apply in the circumstances before us, namely when the government employee both speaks upon a mat-ter of public concern and does so in the course of his ordi-nary duties as a government employee.

II The majority answers the question by holding that

“when public employees make statements pursuant totheir official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitu-tion does not insulate their communications from em-ployer discipline.” Ante, at 9. In a word, the majority says, “never.” That word, in my view, is too absolute.

3 Cite as: 547 U. S. ____ (2006)


Like the majority, I understand the need to “affor[d]government employers sufficient discretion to managetheir operations.” Ante, at 11. And I agree that the Con-stitution does not seek to “displac[e] . . . managerial dis-cretion by judicial supervision.” Ibid. Nonetheless, there may well be circumstances with special demand for consti-tutional protection of the speech at issue, where govern-mental justifications may be limited, and where adminis-trable standards seem readily available—to the point where the majority’s fears of department management by lawsuit are misplaced. In such an instance, I believe that courts should apply the Pickering standard, even though the government employee speaks upon matters of public concern in the course of his ordinary duties.

This is such a case. The respondent, a governmentlawyer, complained of retaliation, in part, on the basis of speech contained in his disposition memorandum that hesays fell within the scope of his obligations under Brady v. Maryland, 373 U. S. 83 (1963). The facts present twospecial circumstances that together justify First Amend-ment review.

First, the speech at issue is professional speech—thespeech of a lawyer. Such speech is subject to independentregulation by canons of the profession. Those canons provide an obligation to speak in certain instances. And where that is so, the government’s own interest in forbid-ding that speech is diminished. Cf. Legal Services Corpo-ration v. Velazquez, 531 U. S. 533, 544 (2001) (“RestrictingLSC [Legal Services Corporation] attorneys in advisingtheir clients and in presenting arguments and analyses to the courts distorts the legal system by altering the tradi-tional role of the attorneys”). See also Polk County v. Dodson, 454 U. S. 312, 321 (1981) (“[A] public defender isnot amenable to administrative direction in the same sense as other employees of the State”). See generally Post, Subsidized Speech, 106 Yale L. J. 151, 172 (1996)



(“[P]rofessionals must always qualify their loyalty and commitment to the vertical hierarchy of an organization by their horizontal commitment to general professionalnorms and standards”). The objective specificity andpublic availability of the profession’s canons also help to diminish the risk that the courts will improperly interferewith the government’s necessary authority to manage itswork.

Second, the Constitution itself here imposes speech obligations upon the government’s professional employee. A prosecutor has a constitutional obligation to learn of, topreserve, and to communicate with the defense about exculpatory and impeachment evidence in the govern-ment’s possession. Kyles v. Whitley, 514 U. S. 419, 437 (1995); Brady, supra. So, for example, might a prisondoctor have a similar constitutionally related professional obligation to communicate with superiors about seriouslyunsafe or unsanitary conditions in the cellblock. Cf. Farmer v. Brennan, 511 U. S. 825, 832 (1994). There maywell be other examples.

Where professional and special constitutional obliga-tions are both present, the need to protect the employee’s speech is augmented, the need for broad government authority to control that speech is likely diminished, and administrable standards are quite likely available. Hence, I would find that the Constitution mandates special pro-tection of employee speech in such circumstances. Thus I would apply the Pickering balancing test here.

III While I agree with much of JUSTICE SOUTER’s analysis, I

believe that the constitutional standard he enunciates fails to give sufficient weight to the serious managerialand administrative concerns that the majority describes. The standard would instruct courts to apply Pickering balancing in all cases, but says that the government

5 Cite as: 547 U. S. ____ (2006)


should prevail unless the employee (1) “speaks on a matter of unusual importance,” and (2) “satisfies high standards of responsibility in the way he does it.” Ante, at 8 (dissent-ing opinion). JUSTICE SOUTER adds that “only comment on official dishonesty, deliberately unconstitutional action,other serious wrongdoing, or threats to health and safetycan weigh out in an employee’s favor.” Id., at 9.

There are, however, far too many issues of public con-cern, even if defined as “matters of unusual importance,” for the screen to screen out very much. Government ad-ministration typically involves matters of public concern. Why else would government be involved? And “publicissues,” indeed, matters of “unusual importance,” are often daily bread-and-butter concerns for the police, the intelli-gence agencies, the military, and many whose jobs involveprotecting the public’s health, safety, and the environ-ment. This aspect of JUSTICE SOUTER’s “adjustment” of “the basic Pickering balancing scheme” is similar to the Court’s present insistence that speech be of “legitimatenews interest”, ibid., when the employee speaks only as a private citizen. See San Diego v. Roe, 543 U. S. 77, 83–84 (2004) (per curiam). It gives no extra weight to the gov-ernment’s augmented need to direct speech that is an ordinary part of the employee’s job-related duties.

Moreover, the speech of vast numbers of public employ-ees deals with wrongdoing, health, safety, and honesty: for example, police officers, firefighters, environmental pro-tection agents, building inspectors, hospital workers, bank regulators, and so on. Indeed, this categorization could encompass speech by an employee performing almost any public function, except perhaps setting electricity rates.Nor do these categories bear any obvious relation to theconstitutional importance of protecting the job-related speech at issue.

The underlying problem with this breadth of coverage isthat the standard (despite predictions that the govern-



ment is likely to prevail in the balance unless the speech concerns “official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety,” ante, at 9), does not avoid the judicial need to undertake the balance in the first place. And this form of judicial activity—the ability of a dissatisfied employee to file a complaint, engage in discovery, and insist that the court undertake a balancing of interests—itself may inter-fere unreasonably with both the managerial function (theability of the employer to control the way in which anemployee performs his basic job) and with the use of other grievance-resolution mechanisms, such as arbitration, civil service review boards, and whistle-blower remedies, for which employees and employers may have bargainedor which legislatures may have enacted.

At the same time, the list of categories substantially overlaps areas where the law already provides nonconsti-tutional protection through whistle-blower statutes andthe like. See ante, at 13 (majority opinion); ante, at 13–15 (SOUTER, J., dissenting). That overlap diminishes theneed for a constitutional forum and also means that adoption of the test would authorize federal Constitution-based legal actions that threaten to upset the legislativelystruck (or administratively struck) balance that those statutes (or administrative procedures) embody.

IV I conclude that the First Amendment sometimes does

authorize judicial actions based upon a government em-ployee’s speech that both (1) involves a matter of public concern and also (2) takes place in the course of ordinary job-related duties. But it does so only in the presence ofaugmented need for constitutional protection and dimin-ished risk of undue judicial interference with governmen-tal management of the public’s affairs. In my view, these conditions are met in this case and Pickering balancing isconsequently appropriate.

With respect, I dissent.

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